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"TAMMY MARQUARDT, WAS CONVICTED OF THE SECOND DEGREE MURDER OF HER TWO AND A HALF YEAR OLD SON, KENNETH WYNNE, ON OCTOBER 24, 1995 AND SENTENCED TO LIFE IMPRISONMENT. . TAMMY MARQUARDT WAS 21 WHEN HER SON PASSED AWAY AND 23 YEARS OLD WHEN CONVICTED OF HIS MURDER. TAMMY MARQUARDT HAD BEEN OFFERED A FIVE-YEAR SENTENCE FOR MANSLAUGHTER BY THE CROWN BUT REFUSED EVEN THOUGH SHE WOULD HAVE BEEN ELIGIBLE FOR PAROLE AFTER 20 MONTHS IN JAIL. IN 1998 TAMMY MARQUARDT APPEALED HER CONVICTION BUT LOST. IRONICALLY, ONE OF THE ONTARIO COURT OF APPEAL JUDGES HEARING TAMMY MARQUARDT'S CASE WAS JUSTICE STEPHEN GOUDGE WHO FOUND HIMSELF, SOME 10 YEARS LATER, CONDUCTING AN INQUIRY INTO DR. CHARLES SMITH'S OPINIONS CONCERNING BABY DEATHS."
TODD HARRISON: THE PRECEDENT BLOG;
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"WILLIAM MULLINS-JOHNSON WAS CONVICTED IN 1994 OF FIRST-DEGREE MURDER IN THE DEATH OF HIS FOUR-YEAR-OLD NIECE IN SAULT STE. MARIE. DURING THE TRIAL, FOUR PATHOLOGY SPECIALISTS, INCLUDING A DR. CHARLES SMITH, WERE ASKED TO REVIEW TISSUE SAMPLES AND EVIDENCE. DR. SMITH WAS THE ONLY SPECIALIST OF THE FOUR TO CONCLUDE THAT THE CHILD HAD BEEN SEXUALLY ASSAULTED AT THE TIME OF DEATH, WHICH CONTRADICTED DEFENCE EVIDENCE THAT THE CHILD HAD DIED OF NATURAL CAUSES. DR. SMITH'S OPINION WAS ESSENTIAL TO THE JURY'S VERDICT OF FIRST-DEGREE MURDER. BECAUSE OF PROFOUND DOUBTS ABOUT THE INTEGRITY OF THE CONVICTION AND THE RESULTS OF MORE RECENT AND POTENTIALLY EXCULPATORY PATHOLOGICAL EVALUATIONS, AIDWYC HAD SOUGHT FOR SOME TIME TO RE-OPEN THE CASE. REPORTS THAT DR. SMITH HAD MISPLACED CRUCIAL EVIDENCE FRUSTRATED THESE EFFORTS AND PROMPTED AN AUDIT OF TISSUE SAMPLES FROM AUTOPSIES PERFORMED AT THE HOSPITAL FOR SICK CHILDREN IN TORONTO SINCE 1991. THE MISSING EXHIBITS OF CONCERN TO AIDWYC WERE SUDDENLY DISCOVERED ON DR. SMITH'S DESK IN LATE MAY.
AT THE TIME OF THE TRIAL, DR. SMITH WAS FREQUENTLY CALLED AS A PROSECUTION EXPERT IN TRIALS INVOLVING PEDIATRIC FORENSICS. SINCE THEN, DOUBTS ABOUT HIS FINDINGS IN A NUMBER OF CASES HAVE LED TO CHARGES BEING WITHDRAWN AND SOME CONVICTIONS BEING QUESTIONED. IN 2002, DR. SMITH WAS REPRIMANDED BY THE ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS. ON JUNE 7, 2005, ONTARIO'S CHIEF CORONER ORDERED A FORMAL, INDEPENDENT REVIEW OF DR. SMITH'S INVOLVEMENT IN OVER 40 CASES IN WHICH HE PERFORMED AN AUTOPSY OR OFFERED AN EXPERT OPINION."
TODD HARRISON: THE PRECEDENT BLOG;
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"KYLE UNGER WAS SENTENCED TO LIFE IMPRISONMENT ALONG WITH CO-ACCUSED TIMOTHY HOULAHAN, WHO LATER COMMITTED SUICIDE, FOR A 1990 MURDER BASED IN PART ON A HAIR FOUND AT THE FEET OF THE VICTIM, 16-YEAR-OLD BRIGITTE GRENIER. THE HAIR SAMPLE WAS ORDERED TO BE RE-TESTED YEARS LATER BY THE RECENTLY ESTABLISHED MANITOBA HAIR EVIDENCE REVIEW COMMITTEE. CONTRARY TO THE PROSECUTION EVIDENCE LED AT TRIAL, THERE WAS NO INCRIMINATORY MATCH;"
TODD HARRISON; THE PRECEDENT BLOG;
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Bravo to writer Todd Harrison for his August 14, 2009 story on the "Precedent Blog" entitled "Who will be exonerated next," with its update on current wrongful convictions which have been taken on by AIDWYC - the Association in Defence of the Wrongly Convicted.
All too many of these cases cases - including the Steven Truscott case - are examples of forensic science (or forensic scientists) gone terribly wrong.
"Precedent: The new rules of law and style," is Ontario’s first independent legal magazine for young lawyers," is how Precedent describes itself.
"We’re stylish, fresh, and a little bit irreverent. Mixing law and lifestyle, Precedent brings you legal news, fashion, entertainment — all with a sense of humour. We think it's exactly what lawyers have been waiting for."
It is refreshing to note that Precedent has taken on such a crucial. visceral topic of interest to lawyers such as wrongful convictions = many of which have been caused by faulty pathology or faulty pathologists - or both;
"The recent death of Donald Marshall has prompted renewed public and media interest in the topic of wrongful convictions in Canada," writer Todd Harrison begins;
"Lately, we've seen everything from looks back at famous cases in our country's legal history to reflections on how much more still must be done to protect Canadians against being sent to prison for a crime they didn't commit," he continues;
"Central to any such discussion is the Association in Defence of the Wrongly Convicted (AIDWYC). The group has been at the forefront of many of Canada's high-profile exonerations, and it continues to work on behalf of people seeking to clear their names.
It's only a matter of time before someone else follows the footsteps of Marshall, David Milgaard and Guy-Paul Morin to freedom and vindication. Here's a look at some of the candidates whose cases are currently being fought by the AIDWYC.
Cases
The following are AIDWYC's current active adopted cases and their status. Check the News and Library pages for recent articles in the media on each of these cases.
New Cases
On May 21st 2009 AIDWYC endorsed the International cases of Jeff Boppre and Raymond Gray.
Jeff Boppre has been incarcerated for nearly 21 years in a Nebraska prison for two murders that we believe evidence proves Mr. Boppre did not commit.
Raymond Gray has been incarcerated in Michigan prisons for 37 years for a murder that AIDWYC believes evidence shows he did not commit.
Further information regarding both of these cases will be posted shortly.
Robert Baltovich
In June 1990, Elizabeth Bain, the girlfriend of 24-year old Robert Baltovich, a recent University of Toronto graduate, was murdered in Toronto. Her body has never been found, nor the weapon used to kill her. Two years later, Baltovich was convicted of the murder and sentenced to life in prison. In March 2000, AIDWYC filed a defence brief at a bail hearing and argued that there was new evidence to suggest that Baltovich was innocent and that the real perpetrator was Paul Bernardo. The bail hearing was successful and, after spending eight years in prison, Baltovich was released pending the appeal of his conviction. In September 2004, Baltovich's appeal was heard. In December 2004, the Ontario Court of Appeal unanimously quashed Robert Baltovich's murder conviction. In 2005 a new trial was ordered. Jury selection proceeded and the trial began in April of 2008. However, on April 22, 2008, the Crown withdrew its case against him and he was acquitted by the jury.
Christopher Bates
Christopher Bates was sentenced to life imprisonment in 1993 for the robbery and murder of Remi Lariviére, a Cowansville shopkeeper. Three others were charged in the crime. The evidence to support Bates' conviction was extremely tenuous. Bates was the first to go to trial. Two of the other men were later found not guilty and the fourth person was not prosecuted. On appeal, with AIDWYC's assistance, Bates' conviction was overturned and a new trial ordered. Anxious about his counsel and fearing a second wrongful conviction and lengthy separation from his young family, Bates accepted a last-second Crown offer of a plea to conspiracy to commit the robbery only and a suspended sentence which did not involve any further time in jail. AIDWYC shares the view of many that this plea of convenience was without factual foundation and after consulting with eminent Quebec counsel, has agreed to proceed with a s.696.1 application on Bates' behalf.
Wilbert Coffin
Wilbert Coffin was hanged for murder in Quebec on February 10, 1956. The federal Justice Department is now investigating whether the Gaspé woodsman was actually guilty of the crime. The Criminal Convictions Review Group (CCRG) is studying whether there are grounds to overturn Mr. Coffin's 1954 conviction. This represents the first time the CCRG--whose mandate is to investigate possible miscarriages of justice--has examined a case where the convicted person is deceased. In AIDWYC's review process, lawyer and AIDYWC co-president, Elisabeth Widner, along with AIDWYC's Director of Client Services, Win Wahrer, have visited Gaspé, Quebec in search of evidence that could exonerate Coffin. His case was subsequently formally adopted by AIDWYC in September 2006. The investigation could lead to three possible outcomes: to dismiss the application, to refer the case to a Court of Appeal, or to recommend a new trial. Canada has never overturned a conviction posthumously. It would set an important precedent and argument against the death penalty, and provide some measure of solace to Mr. Coffin's remaining family members.
Tammy Marquardt
Tammy Marquardt, was convicted of the second degree murder of her two and a half year old son, Kenneth Wynne, on October 24, 1995 and sentenced to life imprisonment. . Tammy Marquardt was 21 when her son passed away and 23 years old when convicted of his murder. Tammy Marquardt had been offered a five-year sentence for manslaughter by the Crown but refused even though she would have been eligible for parole after 20 months in jail. In 1998 Tammy Marquardt appealed her conviction but lost. Ironically, one of the Ontario Court of Appeal judges hearing Tammy Marquardt's case was Justice Stephen Goudge who found himself, some 10 years later, conducting an inquiry into Dr. Charles Smith's opinions concerning baby deaths.
In 2004 Tammy Marquardt contacted AIDWYC seeking its assistance in clearing her name. AIDWYC lawyers discovered that she was largely convicted on the expert testimony of discredited forensic pediatric pathologist Dr. Charles Smith who at the time was revered as the foremost expert in pediatric pathology. Dr. Smith testified that Kenneth was either smothered or strangled to death. Tammy Marquardt has always denied any wrong doing in Kenneth's death and, subsequently, six forensic experts including Newfoundland's Chief Medical Examiner, Dr. Simon Avis, have rejected Smith's opinion as to the cause of death. Kenneth was an epileptic and Dr. Avis believes he could have died from a seizure or other natural causes.
After 14 years behind bars Tammy Marquardt, on March 12, 2009, was granted bail and released to await the final outcome of her case, which will ultimately be heard in the Supreme Court of Canada of the Ontario Court of Appeal later this year.
William Mullins-Johnson
William Mullins-Johnson was convicted in 1994 of first-degree murder in the death of his four-year-old niece in Sault Ste. Marie. During the trial, four pathology specialists, including a Dr. Charles Smith, were asked to review tissue samples and evidence. Dr. Smith was the only specialist of the four to conclude that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes. Dr. Smith's opinion was essential to the jury's verdict of first-degree murder. Because of profound doubts about the integrity of the conviction and the results of more recent and potentially exculpatory pathological evaluations, AIDWYC had sought for some time to re-open the case. Reports that Dr. Smith had misplaced crucial evidence frustrated these efforts and prompted an audit of tissue samples from autopsies performed at the Hospital for Sick Children in Toronto since 1991. The missing exhibits of concern to AIDWYC were suddenly discovered on Dr. Smith's desk in late May.
At the time of the trial, Dr. Smith was frequently called as a prosecution expert in trials involving pediatric forensics. Since then, doubts about his findings in a number of cases have led to charges being withdrawn and some convictions being questioned. In 2002, Dr. Smith was reprimanded by the Ontario College of Physicians and Surgeons. On June 7, 2005, Ontario's Chief Coroner ordered a formal, independent review of Dr. Smith's involvement in over 40 cases in which he performed an autopsy or offered an expert opinion.
Mullins-Johnson was released on bail on September 21, 2005 pending ministerial review of a s. 696.1 application. In July 2007, Federal Justice Minister Rob Nicholson ordered the Court of Appeal to review the case stating that "a miscarriage of justice may well have occurred." On October 15, 2007, the Ontario Court of Appeal acquitted Mullins-Johnson of all charges.
Romeo Phillion
Romeo Phillion was convicted in 1972 of the murder of firefighter and apartment superintendent Leopold Roy in Ottawa. New evidence was identified, including a police report not shown to the defence at the original trial that supported Mr. Phillion's alibi that he was at a service station 200 kilometres from Ottawa when the crime took place. There was also evidence that four Crown witnesses all changed their testimony about when they saw Mr. Phillion in Ottawa. An s.696.1 application was prepared and submitted to the Federal Minister of Justice, by AIDWYC and the Osgoode Hall Innocence Project on May 15, 2003. After serving 31 years in prison, Mr. Phillion, as a result of AIDWYC's efforts, was released on bail in July 2003. At the time, Mr. Phillion was the first person ever granted bail pending a ministerial review of his wrongful conviction. On August 23, 2006, then Justice Minister Vic Toews advised that he was reserving his final decision until certain issues can be addressed by the Ontario Court of Appeal.
Mr. Phillion and AIDWYC lawyers attended the Ontario Court of Appeal on January 21, 2008 for a week of testimony in his fresh evidence hearing. On July 8th and 9th 2008, the prosecution and defence lawyers attended court in London, England to hear testimony from the defence false confession expert, world renowned expert, Dr. Gisli Gudjonsson. Justice Robert Sharpe, who has been the "case management judge", flew to England to preside over the taking of evidence from Dr. Gudjonsson. On July 24th Mr.Phillion's fresh evidence hearing continued at the Ontario Court of Appeal with Justice Sharpe presiding. The Crown false confession expert, Dr. Michael Welner, a forensic psychiatrist from New York testified. Dr. Welner admitted that he had never asked to examine Mr. Phillion in person before submitting his report. November 17 - 27, 2008 final oral arguments were heard at the Ontario Court of Appeal. On March 5, 2009 the three Ontario Court of Appeal judges who presided over the fresh evidence hearing, Justices Michael Moldaver, John Laskin and James MacPherson released their written decision. In a 2-1 decision, Justice MacPherson dissenting, Mr. Phillion was awarded a new trial.
Ontario Attorney General, Chris Bentley, has advised Mr. Phillion and AIDWYC lawyers that his office will not proceed with a second trial given the passage of time and the death of so many of the witnesses. The following options are available to the Attorney General: 1. stay the proceedings; 2. withdraw the charges; 3. have Romeo Phillion return to court to be arraigned and enter a plea, at which point the Crown would advise the court it has no evidence to call. A judge would then acquit Mr. Phillion. Mr. Phillion and AIDWYC are awaiting the Attorney General's decision.
Steven Truscott
Steven Truscott was sentenced to death in 1959 at the age of 14 for the murder of 12-year-old Lynne Harper, on the basis of unreliable police and prosecution evidence. His sentence was commuted to life imprisonment in 1960 and his conviction upheld in 1967. In 2001, AIDWYC prepared and submitted an application for ministerial review (s.696.1) on Truscott's behalf. Retired former Justice of the Quebec Court of Appeal, Fred Kaufman, was retained to review, re-investigate and submit a report to the Justice Minister outlining his findings and recommendations. In October 2004, the Federal Justice Minister, Irwin Cotler, stated that Steven Truscott had likely suffered a miscarriage of justice and referred his case to the Ontario Court of Appeal. After pressure from the media, portions of the Kaufman Report were released to the public in November 2006. On June 19, 2006, a five-judge panel conducted a three-week fresh evidence hearing. In April 2006, the body of Lynne Harper was exhumed at the instruction of the Attorney General's office in the hopes of finding DNA evidence. Forensic experts were unable to conduct DNA tests due to the poor condition of her remains. The final oral arguments in Steven Truscott's case were heard in the Ontario Court of Appeal in January and February 2007. On August 28, 2007, the Ontario Court of Appeal acquitted Steven Truscott, concluding, "based on evidence that qualifies as fresh evidence in these proceedings, we are satisfied that Mr. Truscott's conviction was a miscarriage of justice and must be quashed." See the LIBRARY for copies of Truscott legal documents.
Kyle Unger | Updated April 11, 2009
Kyle Unger was sentenced to life imprisonment along with co-accused Timothy Houlahan, who later committed suicide, for a 1990 murder based in part on a hair found at the feet of the victim, 16-year-old Brigitte Grenier. The hair sample was ordered to be re-tested years later by the recently established Manitoba Hair Evidence Review Committee. Contrary to the prosecution evidence led at trial, there was no incriminatory match. The Federal Justice Minister has agreed to review the case. Unger was released on bail on November 24, 2005 pending ministerial review of his s.696.1 application that was submitted on his behalf by AIDWYC.
On March 11, 2009, Federal Minister of Justice, the Honourable Rob Nicholson announced his decision regarding Mr. Unger's case by stating, "I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger's 1992 conviction." Mr. Unger was granted a new trial. Mr. Unger and his AIDWYC lawyers are currently waiting to be advised by the Province of Manitoba whether it will proceed with a second trial.
Erin Walsh
On October 17 1975 a jury convicted Erin Walsh of the second-degree murder of Melvin Eugene Peters, an African Canadian. The Crown claimed Walsh was racially motivated. The incident occurred when Peters and two other males attempted to rob Walsh of his money and drugs. During a life-and-death struggle with a gun, Peters was shot. The Crown's case centered on Walsh as the shooter and convicted of the crime, he spent the next 10 years in prison.Despite overwhelming odds, Walsh continued to pursue justice with what little resources at his disposal. He continued to write to whoever would listen. He continued even when it was to his detriment - even when the parole board would hold it against him. The problem was Walsh's story was not supported by any other independent evidence (that he was then aware of). After 28 years of perseverance, Walsh's efforts paid off.
In 2003, he wrote to the New Brunswick Provincial Archives and was given a package containing the complete Crown file, a file that had been collecting dust for almost three decades. In this file Walsh found a treasure trove of exculpatory evidence never before disclosed. Most significantly, he read for the first time that the Crown's star witness (and only eye witness to the shooting), David Walton (one of the robbers), was overheard by a St. John police officer less than an hour after the fatal shooting, asking his friend (the other robber) and co-crown witness MacMillan, why he shot Peters.
With amazement, Walsh read for the first time that there was a police report that was never disclosed to him or his lawyers that supported his story. In addition, Walsh read that there was a statement recorded by St. John Police in which the proprietor of a local hardware store said that the shells were purchased for the gun one day before Crown witness Macmillan said they were purchased, when Walsh was literally a thousand miles away from St. John. There were also seven signed statements by witnesses who could attest to the fact that Walsh ran away from Crown witnesses MacMillan, Walton and Peters after they had attempted to rob him at gunpoint just prior to forcing him into the car. These witnesses supported the fact that Walsh in fact asked for the police to be called just 10 minutes before the shot was fired that killed Peters.
Finally, on February 22, 2008 Federal Justice Minister R. Nicholson issued a Ministerial Remedy acknowledging that a miscarriage of justice likely occurred. Then, within hours of the Minister's decision, the New Brunswick Attorney General took the honourable position before the New Brunswick Court of Appeal that not only was a miscarriage "likely", but that it in fact occurred. The Attorney General agreed that the conviction should be quashed. On March 14th, 2008, after 33 years of proclaiming his innocence, Erin Walsh was vindicated.
The New Brunswick Court of Appeal reviewed his case and overturned his conviction of second degree murder."
The story can be found at:
http://mail.google.com/mail/?hl=en&tab=wm#inbox/1232902acb89cee7
Harold Levy...hlevy15@gmail.com;
Showing posts with label AIDWYC. Show all posts
Showing posts with label AIDWYC. Show all posts
Tuesday, August 18, 2009
Saturday, January 24, 2009
HUGE DEVELOPMENT IN BATTLE TO EXONERATE THE WRONGLY CONVICTED: ASSOCIATION IN DEFENCE OF WRONGLY CONVICTED RECIEVES $1 MILLION FROM PRIVATE DONOR;
I had to look twice to believe this story: A private individual donating such a huge amount to an organization that goes to bat for people believed to have been failed by their criminal justice system.
The donor is Ian Cartwright - a retired judge who couold easily have used the funds to have a new wing of a law school named support the often unrewarding cost of righting injustices;
The organization is AIDWYC which has a major role in exposing Dr. Charles Smith and obtaining redress for his many victims.
Cartwright's wonderful donation is reported in today's Globe and Mail by justice reporter Kirk Makin under the heading: "The wrongfully convicted get a rightful donation: Million-dollar gift from retired judge will help non-profit advocacy group work to overturn unjust convictions."
"The office manager of the Association in Defence of the Wrongly Convicted, Win Wahrer, froze in astonishment recently as she shook out the contents of a letter from Calgary," Makin's story begins;
"Out tumbled a personal cheque for a million dollars," it continues;
"In an instant, AIDWYC ended 15 years as a grassroots outfit struggling for every dime in order to ferret out and help exonerate the wrongly convicted.
The identity of the donor was surprising - Ian Cartwright, a retired Ontario Superior Court judge whose family has operated the Canada Law Book publishing house for several decades.
As word of the donation - which will provide no tax deduction to Mr. Cartwright because the group does not have charity status - travelled through the upper echelons of AIDWYC, the directors were flabbergasted. Lawyer Paul Copeland sent a one-word e-mail to Mr. Cartwright: "WOW."
Another director, lawyer James Lockyer, felt woozy. "I felt a sense of wonder and joy - and a bit frightened," Mr. Lockyer recalled yesterday. "I had to hear it two or three times before I could believe it.
"This demonstrates such a tremendous commitment to justice. It was so much money that my immediate thought was: 'We can't take this; it's too much responsibility.' "
Ralph Steinberg, co-president of AIDWYC, said he was heartened to learn it was a former judge who made the donation.
"We can assume that he is aware of the need for some mechanism outside of the appeal process to bring wrongful convictions to light," Mr. Steinberg said. "The last 15 years have seen a steady, increasing progression in the work AIDWYC does. There just doesn't seem to be an end to these cases."
Mr. Cartwright and his wife, Pat, asked AIDWYC to put the money into a fund in the name of former Canada Law Book president Stan Corbett, who is fighting cancer.
"I've been a very keen supporter of this association," Mr. Cartwright said in an interview yesterday. "The huge thing with these volunteer organizations is that they live hand-to-mouth, wondering, 'How are we going to continue?' "
Mr. Cartwright said he normally makes donations anonymously, but he hopes that his million-dollar gesture will prompt others to help fund AIDWYC. "They just don't have the capital funding they need," he said.
Mr. Corbett expressed delight that at a time when most organizations are downsizing and contemplating layoffs, AIDWYC can now envision a golden future.
"You know, the state has unlimited resources," he said. "We have a wonderful justice system in Canada, but I have often thought that there is a one-sided balance. Mistakes can and do happen. Prosecutors take a more adversarial position nowadays, and there needs to be a counterbalance.
"This organization has really picked up the gauntlet and taken a lead role in finding these cases where there may have been wrongful convictions," Mr. Corbett said. "I think they have done a fantastic job in this area. Having my name attached to this - I couldn't be more pleased or honoured."
AIDWYC directors said yesterday that the donation will likely go in many directions. With funding available for forensic testing, court transcripts and expert witnesses, they said clients will no longer have to languish in prison for months or years as a case for their exoneration is prepared.
AIDWYC also can contemplate lobbying politicians and justice officials for criminal justice reforms. And Mr. Lockyer said the association will move to expand its primary base - in Ontario, Newfoundland and Manitoba - into provinces where it has had difficulty gaining a foothold, particularly Alberta and British Columbia.
"Lawyers have always worked for free, and that won't change," Mr. Lockyer said. "But the administration behind the cases, as well as the work that is required to investigate cases, does cost money. We have to think how we can free more people, and free them quicker."
Mr. Cartwright said he only wished there was an organization like AIDWYC he could have donated money to 40 or 50 year ago, when Canada still had capital punishment.
"I just hate to think of the number of people who have been hanged," he said. "Some innocent people have definitely been hung, because the evidence against them just wasn't there.""
The story contains a postscript under the heading: "Beyond Guy Paul Morin."
"The Association in Defence of the Wrongly Convicted has few peers when it comes to achieving goals and reaping publicity for a cause," the postscript begins;
"Operating on a shoestring since its creation in 1993, the group has been instrumental in freeing more than a dozen wrongly convicted individuals serving murder sentences. Along the way, it has developed a media profile that would be the envy of any grassroots, volunteer organization," it continues;
"Scores of prisoners from the U.S. to Mexico and Australia have sought help from the association, a global leader in the wrongful-conviction movement.
The association grew out of the Justice for Guy Paul Morin Committee, formed in 1992 to support Mr. Morin, who had been convicted of murdering his next-door neighbour, Christine Jessop.
Operating pro bono and with financial help from the Law Foundation of Ontario, a shifting group of 25 to 50 AIDWYC lawyers sift through pleas for help in search of those where prosecution evidence was scanty or appears to have been compromised.
Activists invariably list lack of funding as the overriding factor causing innocent people to remain in prison. A single case can consume hundreds of hours of work as lawyers reinterview witnesses, scrutinize transcripts and scour archives for unnoticed clues that could unravel a conviction.
The cases that AIDWYC has helped win exonerations include: William Mullins-Johnson and Steven Truscott (Ontario); David Milgaard (Saskatchewan); Greg Parsons, Ronald Dalton and Randy Druken (Newfoundland); Jim Driskell (Manitoba), and Clayton Johnson (Nova Scotia)."
Harold Levy...hlevy15@gmail.com;
The donor is Ian Cartwright - a retired judge who couold easily have used the funds to have a new wing of a law school named support the often unrewarding cost of righting injustices;
The organization is AIDWYC which has a major role in exposing Dr. Charles Smith and obtaining redress for his many victims.
Cartwright's wonderful donation is reported in today's Globe and Mail by justice reporter Kirk Makin under the heading: "The wrongfully convicted get a rightful donation: Million-dollar gift from retired judge will help non-profit advocacy group work to overturn unjust convictions."
"The office manager of the Association in Defence of the Wrongly Convicted, Win Wahrer, froze in astonishment recently as she shook out the contents of a letter from Calgary," Makin's story begins;
"Out tumbled a personal cheque for a million dollars," it continues;
"In an instant, AIDWYC ended 15 years as a grassroots outfit struggling for every dime in order to ferret out and help exonerate the wrongly convicted.
The identity of the donor was surprising - Ian Cartwright, a retired Ontario Superior Court judge whose family has operated the Canada Law Book publishing house for several decades.
As word of the donation - which will provide no tax deduction to Mr. Cartwright because the group does not have charity status - travelled through the upper echelons of AIDWYC, the directors were flabbergasted. Lawyer Paul Copeland sent a one-word e-mail to Mr. Cartwright: "WOW."
Another director, lawyer James Lockyer, felt woozy. "I felt a sense of wonder and joy - and a bit frightened," Mr. Lockyer recalled yesterday. "I had to hear it two or three times before I could believe it.
"This demonstrates such a tremendous commitment to justice. It was so much money that my immediate thought was: 'We can't take this; it's too much responsibility.' "
Ralph Steinberg, co-president of AIDWYC, said he was heartened to learn it was a former judge who made the donation.
"We can assume that he is aware of the need for some mechanism outside of the appeal process to bring wrongful convictions to light," Mr. Steinberg said. "The last 15 years have seen a steady, increasing progression in the work AIDWYC does. There just doesn't seem to be an end to these cases."
Mr. Cartwright and his wife, Pat, asked AIDWYC to put the money into a fund in the name of former Canada Law Book president Stan Corbett, who is fighting cancer.
"I've been a very keen supporter of this association," Mr. Cartwright said in an interview yesterday. "The huge thing with these volunteer organizations is that they live hand-to-mouth, wondering, 'How are we going to continue?' "
Mr. Cartwright said he normally makes donations anonymously, but he hopes that his million-dollar gesture will prompt others to help fund AIDWYC. "They just don't have the capital funding they need," he said.
Mr. Corbett expressed delight that at a time when most organizations are downsizing and contemplating layoffs, AIDWYC can now envision a golden future.
"You know, the state has unlimited resources," he said. "We have a wonderful justice system in Canada, but I have often thought that there is a one-sided balance. Mistakes can and do happen. Prosecutors take a more adversarial position nowadays, and there needs to be a counterbalance.
"This organization has really picked up the gauntlet and taken a lead role in finding these cases where there may have been wrongful convictions," Mr. Corbett said. "I think they have done a fantastic job in this area. Having my name attached to this - I couldn't be more pleased or honoured."
AIDWYC directors said yesterday that the donation will likely go in many directions. With funding available for forensic testing, court transcripts and expert witnesses, they said clients will no longer have to languish in prison for months or years as a case for their exoneration is prepared.
AIDWYC also can contemplate lobbying politicians and justice officials for criminal justice reforms. And Mr. Lockyer said the association will move to expand its primary base - in Ontario, Newfoundland and Manitoba - into provinces where it has had difficulty gaining a foothold, particularly Alberta and British Columbia.
"Lawyers have always worked for free, and that won't change," Mr. Lockyer said. "But the administration behind the cases, as well as the work that is required to investigate cases, does cost money. We have to think how we can free more people, and free them quicker."
Mr. Cartwright said he only wished there was an organization like AIDWYC he could have donated money to 40 or 50 year ago, when Canada still had capital punishment.
"I just hate to think of the number of people who have been hanged," he said. "Some innocent people have definitely been hung, because the evidence against them just wasn't there.""
The story contains a postscript under the heading: "Beyond Guy Paul Morin."
"The Association in Defence of the Wrongly Convicted has few peers when it comes to achieving goals and reaping publicity for a cause," the postscript begins;
"Operating on a shoestring since its creation in 1993, the group has been instrumental in freeing more than a dozen wrongly convicted individuals serving murder sentences. Along the way, it has developed a media profile that would be the envy of any grassroots, volunteer organization," it continues;
"Scores of prisoners from the U.S. to Mexico and Australia have sought help from the association, a global leader in the wrongful-conviction movement.
The association grew out of the Justice for Guy Paul Morin Committee, formed in 1992 to support Mr. Morin, who had been convicted of murdering his next-door neighbour, Christine Jessop.
Operating pro bono and with financial help from the Law Foundation of Ontario, a shifting group of 25 to 50 AIDWYC lawyers sift through pleas for help in search of those where prosecution evidence was scanty or appears to have been compromised.
Activists invariably list lack of funding as the overriding factor causing innocent people to remain in prison. A single case can consume hundreds of hours of work as lawyers reinterview witnesses, scrutinize transcripts and scour archives for unnoticed clues that could unravel a conviction.
The cases that AIDWYC has helped win exonerations include: William Mullins-Johnson and Steven Truscott (Ontario); David Milgaard (Saskatchewan); Greg Parsons, Ronald Dalton and Randy Druken (Newfoundland); Jim Driskell (Manitoba), and Clayton Johnson (Nova Scotia)."
Harold Levy...hlevy15@gmail.com;
Tuesday, May 27, 2008
Part One: Gaurov's Father: Seeking Exoneration After Sixteen Years: Pleaded Guilty Because he Feared Smith;
"IN THE INTERVIEW, MR. KUMAR SAID THAT HE LONGS ONLY TO RESTORE HIS REPUTATION; THAT HE TRIES NOT TO THINK ABOUT THE PROFOUND EFFECT DR. SMITH'S CONCLUSIONS HAD ON HIS FAMILY.
"I DON'T NEED TO SAY ANYTHING ABOUT HIM," MR. KUMAR SAID. " HE IS GOING TO GET PUNISHED BY GOD."
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DINESH KUMAR TO JUSTICE REPORTER KIRK MAKIN; THE GLOBE AND MAIL;
-------------------------------------------------------------------------------
The Ontario Court of Appeal is once again confronting the chaos inflicted on Ontario's Justice system by Dr. Charles Smith.
As Justice reporter Kirk Makin set out in the Globe and Mail on May 26, 2008, the appeal has been brought by Dinesh Kumar who's son died sixteen years ago.
"After learning that the country's leading forensic pathologist - Charles Smith - was going to testify against him at his trial for murder in the death of his five-week-old baby, Dinesh Kumar realized his chances of an acquittal were minuscule," Makin's story begins.
"My lawyers told me that whatever he said, the court would make their decision because of it," Mr. Kumar said, in his first public statement since his 1992 conviction. "My lawyer told me that Dr. Smith was like a god in court. The whole thing was up to him,"" the story continues.
"Resigned to his fate, the 42-year-old man accepted an extraordinarily lenient plea offer from the Crown. He admitted to a crime that Mr. Kumar insists he did not commit - shaking his baby, Gaurov, to death. His sentence was 90 days in jail for criminal negligence causing death - a far cry from the term of life imprisonment he had faced.
Sixteen years later - with Dr. Smith's reputation reduced to ashes and many of his court findings in great doubt - Mr. Kumar is returning to court in search of exoneration. Tomorrow, he intends to tell an Ontario Court of Appeal judge that his guilty plea was the act of a desperate man who was terrified of spending his life behind bars.
"I want to show people that I didn't do anything to my son," Mr. Kumar said in an interview.
"This is always on my mind. I came to this country for its good opportunities - and then, this happened to me. I have felt a great sadness inside. Almost every night, I have been crying. It changed my life totally."
The Kumar case was among 20 cases Mr. Justice Stephen Goudge has scrutinized recently at an inquiry into errors Dr. Smith made during his two-decade reign as Ontario's top forensic pathologist.
As part of the application to reopen the case, Association in Defence of the Wrongly Convicted lawyers James Lockyer and Alison Craig intend to argue that Dr. Smith's theory - that baby Gaurov was a victim of shaken baby syndrome - is scientifically unsustainable.
"Some medical experts have gone so far as to suggest that the condition of shaken baby syndrome is a medical myth," the lawyers maintain in a brief to the court.
In his affidavit, Mr. Kumar states that his lawyer - David Gorrell - urged him to accept the Crown's extraordinary offer in 1992. He said that he was petrified at the prospect of being deported or having his other son, Saurob, taken away permanently.
"I could not allow my wife to bring up Saurob without me," he said in the affidavit. "I could not conceive of losing him too. I wanted to get everything over with. It was the hardest decision I ever had to make."
Mr. Kumar had emigrated from India just two years earlier. He married, and Gaurov was born shortly afterward. Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child's crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.
There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith's autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.
Mr. Kumar said that after their ordeal he and his wife decided not to have any more children, for fear they might lose them. "We were completely devastated and dejected," Mr. Kumar said in his affidavit. "I carry a photograph of Gaurov everywhere I go. We cry for him. I think of him every day.
"I love him, cared for him, and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception."
The real cause of Gaurov's death might never be solved. In their brief, Mr. Lockyer and Ms. Craig state that Dr. Smith ought to have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent.
They said that bleeding in Gaurov's brain lining at his autopsy could have been the result of a birth injury that reopened and bled again.
In the interview, Mr. Kumar said that he longs only to restore his reputation; that he tries not to think about the profound effect Dr. Smith's conclusions had on his family.
"I don't need to say anything about him," Mr. Kumar said. "He is going to get punished by God.""
Harold Levy...hlevy15@gmail.com;
Sunday, May 11, 2008
Part Two: Work Of Other Pathologists Who Conducted Pediatric Autopsies in Ontario Must Also Be Reviewed; Closing Submissions; AIDWYC And M.J. Group;
"THROUGHOUT HIS TENURE, THERE WAS VIRTUALLY NO OVERSIGHT OR PEER REVIEW OF POST MORTEM REPORTS IN THE PROVINCE.
IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.
A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.
For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:
Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981
(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);
"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.
"There have been consistent problems in Dr. Smith’s cases," it continues;
"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.
Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.
Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.
His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.
Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.
All cases which relied on pathology opinions rendered by Dr. Smith require review.
Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.
Several forensic pathologists worked under his influence and administration.
He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.
Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.
It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.
A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.
Dr. Smith was accorded unparalleled respect and deference by his peers.
They were unwilling to challenge him.
For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:
"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."
He continued:
"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.
Finally, his report concluded:
"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.
It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."
In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.
If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.
A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.
Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.
He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.
Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.
It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.
Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.
Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.
It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.
This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.
There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.
Dr. Smith had no proper training in forensic pathology.
Yet, he was the one who reviewed every report that came out of the unit.
In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:
"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;
A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –
Q: Right.
A: - and – but as far as Dr. Smith –
Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?
A: Most of the times, yes."
Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.
In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.
There was no review of photographs, slides, or underlying histology.
As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.
Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.
In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:
Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?
A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.
Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.
He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:
“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.
This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.
Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.
The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.
For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.
In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.
Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.
Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.
He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.
It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;
This provides one more reason for a Province-wide review.
As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.
As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.
Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.
Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.
Dr. Crane supported it.
Dr. Butt suggested that it would be “a prudent thing to do”.
Dr. Cairns considered a further review to be an ‘ethical duty’.
Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.
There are relatively low numbers of pediatric homicides in Ontario each year.
45 of them have already been examined.
A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.
The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.
Of those, only a fraction would have resulted in criminal convictions.
The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.
In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.
This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.
The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.
This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:
0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;
0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;
0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,
0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.
Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.
A broader, external review of Dr. Smith's work was aborted.
51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.
(He later started again.)
James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.
Dr. Young responded that no comprehensive review would be performed.
Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.
No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.
In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.
Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.
It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.
A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.
A decade and a half had passed since Justice Dunn's ruling.
Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."
Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.
The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.
The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."
The same holds true for a more comprehensive review.
Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."
Harold Levy...hlevy15@gmail.com;
IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.
A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.
For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:
Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981
(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);
"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.
"There have been consistent problems in Dr. Smith’s cases," it continues;
"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.
Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.
Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.
His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.
Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.
All cases which relied on pathology opinions rendered by Dr. Smith require review.
Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.
Several forensic pathologists worked under his influence and administration.
He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.
Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.
It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.
A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.
Dr. Smith was accorded unparalleled respect and deference by his peers.
They were unwilling to challenge him.
For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:
"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."
He continued:
"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.
Finally, his report concluded:
"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.
It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."
In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.
If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.
A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.
Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.
He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.
Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.
It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.
Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.
Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.
It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.
This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.
There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.
Dr. Smith had no proper training in forensic pathology.
Yet, he was the one who reviewed every report that came out of the unit.
In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:
"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;
A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –
Q: Right.
A: - and – but as far as Dr. Smith –
Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?
A: Most of the times, yes."
Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.
In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.
There was no review of photographs, slides, or underlying histology.
As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.
Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.
In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:
Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?
A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.
Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.
He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:
“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.
This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.
Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.
The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.
For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.
In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.
Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.
Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.
He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.
It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;
This provides one more reason for a Province-wide review.
As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.
As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.
Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.
Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.
Dr. Crane supported it.
Dr. Butt suggested that it would be “a prudent thing to do”.
Dr. Cairns considered a further review to be an ‘ethical duty’.
Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.
There are relatively low numbers of pediatric homicides in Ontario each year.
45 of them have already been examined.
A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.
The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.
Of those, only a fraction would have resulted in criminal convictions.
The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.
In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.
This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.
The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.
This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:
0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;
0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;
0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,
0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.
Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.
A broader, external review of Dr. Smith's work was aborted.
51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.
(He later started again.)
James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.
Dr. Young responded that no comprehensive review would be performed.
Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.
No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.
In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.
Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.
It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.
A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.
A decade and a half had passed since Justice Dunn's ruling.
Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."
Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.
The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.
The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."
The same holds true for a more comprehensive review.
Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."
Harold Levy...hlevy15@gmail.com;
Monday, May 5, 2008
Part Five: Who Is Edward Charles Splatt? From Guy Paul Morin to Edward Splatt: Lessons Unfortunately Not Learned;
Guy Paul Morin;
Edward Charles Splatt with journalist Stuart Cockburn;
"INDEED, AT THE VERY SAME TIME THAT THE COMMISSION OF INQUIRY ON PROCEEDINGS INVOLVING GUY PAUL MORIN WAS SCRUTINIZING AND REPORTING ON THE INADEQUACIES OF THE CENTRE FOR FORENSIC SCIENCES THAT CONTRIBUTED TO THE WRONGFUL CONVICTION OF GUY PAUL MORIN, MANY SIMILAR OR ANALOGOUS PRACTICES WERE TAKING PLACE A STONE’S THROW AWAY AT THE OFFICE OF THE CHIEF CORONER FOR ONTARIO. IT IS IRONIC THAT AT THAT TIME, BOTH INSTITUTIONS WERE HEADED BY THE SAME PERSON."
CLOSING SUBMISSIONS; ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED AND MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
One of the most important perspectives coming out of the Goudge inquiry was provided by lawyers Louis Sokolov on behalf of the Association in Defence of the Wrongly Convicted (AIDWYC) in his closing submissions.
Sokolov pointed out that many of the flaws in the area of forensic science identified by Justice Fred Kaufman as contributing to the wrongful conviction of Guy Paul Morin had been observed in cases involving Dr. Charles Smith being studied by Commissioner Goudge.
Justice Kaufman presided over the Inquiry into the wrongful conviction of Guy Paul Morin: See earlier posts: Part Three: Who Is Edward Charles Splatt? The Guy Paul Morin Connection; Part Four; Who is Edward Charles Splatt? More on the Guy Paul Morin Connection;
The link between the Kaufman Inquiry and the injustices attributed to Dr. Charles Smith was made by lawyers representing the Association in Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson Group in their closing submissions to the Goudge Commission.
"This is the seventh commission of inquiry in this country arising from miscarriages of justice, and the sixth that AIDWYC has taken part in," the lawyers pointed out.
"There is much in these submissions that has been said before by AIDWYC and others in the context of the other public inquiries, but nonetheless bears repeating because many of the factors than contribute to miscarriages of justice (e.g. tunnel vision, inadequate scientific evidence, poorly resourced defence counsel, lack of an independent and effective error correction body) continually reappear notwithstanding the good efforts of those commissions," they continued.
"Indeed, at the very same time that the Commission of Inquiry on Proceedings Involving Guy Paul Morin was scrutinizing and reporting on the inadequacies of the Centre For Forensic Sciences that contributed to the wrongful conviction of Guy Paul Morin, many similar or analogous practices were taking place a stone’s throw away at the Office of the Chief Coroner for Ontario. It is ironic that at that time, both institutions were headed by the same person."
I have focused on Sokolov's submissions in an article published in the most recent issue of the AIDWYC Journal entitled, "AIDWYC lawyers cross-examine Dr. James Young at the Goudge Inquiry" - and sub-titled "Deja Vu."
According to the Internet Dictionary: "The phrase "Déjà vu" is French for "already seen" and is used to refer to when a person experiences the feeling that they have seen, experienced, or been someplace before even when they are sure that that is not really true."
"As the Goudge Inquiry winds to a close, most of us want to believe that important lessons will be learned so that in the future innocent parents and caregivers will be spared the horror of being cast as murderers because of the failings of forensic science and forensic scientists," the article began.
"However, the cross-examination of former Chief Coroner Dr. James Young by AIDWYC lawyers Lewis Sokolov and Vanora Simpson – with its evocation of the abuses of forensic science that led to the wrongful conviction of Guy Paul Morin, might somewhat temper our optimism," it continued.
"After all, Dr. Young was also a witness at the Kaufman Inquiry into Morin's wrongful conviction as Assistant Deputy Solicitor General with responsibility for the Centre for Forensic Science which had come under intensive scrutiny for its role in connection with the Morin case.
Indeed, Justice Fred Kaufman concluded in his 1998 report that:
"A large number of CFS scientists perform their work with distinction. On the other hand, it would be a serious mistake to assume that the failings identified are confined to two (2) scientists. A number of those failings are rooted in systemic problems, many of which transcend, even the CFS and have been noted in cases worldwide where science has been misused. Dr. -- Dr. James Young, assistant Deputy, Solicitor General with responsibility for the CFS, apologized on behalf of the CFS for any role in Guy Paul Moran's conviction and advised the Commissioner that he had not appreciated the depth of issues which – which would arise at the Inquiry."
Flash forward almost ten years to 2007, and Dr. Young is in the hot-seat at the Goudge Inquiry where he is being questioned in the context of the positions he held as Assistant Deputy Minister and Chief Coroner for many years.
I could not help but feel an enormous sense of "déjà vu" as Sokolov drew Dr Young's attention to some of Justice Kaufman's findings in Morin, including:
0: The limitations upon scientific findings were not accurately or adequately communicated to police, prosecutors, the defence, and – to the courts;
0: Scientific findings were overstated at times;
0: Evidence was lost;
0: There were at times a loss of object -- objectivity inconsistent with the proper role of a forensic scientist.
0: Forensic reports were not being reduced to writing so that they could later be viewed by others for purposes of certainty and accountability; (Justice Kaufman recommended that there should be a written policy for forensic reports);
Young agreed with Sokolov that, "Much of the findings and indeed the recommendations regarding the Morin Report, need not only concern the (Centre of Forensic Sciences) but concern the wider issues of forensic science."
Coming back to my sense of "déjà vu," here we were ten years later, Dr. Young was in the witness box admitting errors in the system, and we had spent the last three months hearing a mountain of evidence involving overstatement of scientific opinions, failure to disclose the limitations on scientific findings, sloppy forensic reports, loss of evidence - and, above all, forensic scientists testifying for the state who displayed lack of objectivity consistent with the proper role of a social scientist.
Haven't we heard that before?"
I concluded by signing the article: "Harold Levy; (Who in spite of all this believes the Goudge inquiry is immensely important, believes compensation for Dr. Smith's victims cannot come soon enough, and remains an incurable optimist)."
Admittedly, when one considers all of the alarm bells relating to Dr. Charles Smith over the years - and the failure of his superiors in the Chief Coroner's Office and the Hospital for Sick Children to reign him in - it is getting harder and harder to retain that sense of optimism.
Harold Levy...hlevy@gmail.com
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